RULING NUMBER COM TB 001/2014

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 5 & 6, 2013 & FEBRUARY 19 & 20, 2014

NOTICE OF DECISION

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THE APPEAL OF ROBERT R. BERTRAND

Robert R. Bertrand appealed against the Notice of Proposed Order to Refuse to Issue him a licence (“NOP”) dated September 23, 2013.

Dates of Hearing: December 5 & 6, 2013 and February 19 & 20, 2014

ORC Panel Members: Elmer Buchanan, Chair John Macdonald, Member Sandra Meyrick, Member

Counsel for the Appellant: Daniel McMahon

ORC Counsel for the Administration: Jennifer Friedman

Decision: Appeal denied

The Panel’s Reasons for Decision is attached to this Notice.

DATED at Toronto this 18^th^ day of March 2014.

Steven Lehman

Executive Director

REASONS FOR DECISION

1. Robert R. Bertrand (“Bertrand”) was licensed by the Ontario Racing Commission (“ORC”) for many years in a variety of positions including Exercise Boy; Jockey Valet; Authorized Agent; Paddock Judge; Horse Identifier, and for the last approximately 20 years as the Clerk of the Scales (“C of S”) during his employment with what is now the Woodbine Entertainment Group (“WEG”). Bertrand was classified as a “Racing Official” by Rule 2.33 of the Rules of Thoroughbred Racing (“TB Rules”), Licence #114494.

2. In the fall of 2012, the Administration Branch of the ORC began an investigation into alleged misconduct by Bertrand. His licence as a racing official expired on March 1, 2013. The Investigation continued after that date and the request for the issue of a conditional C of S licence was refused and hearings relating thereto by Bertrand were unsuccessful.

3. On September 23, 2013, (Exhibit 6,) the Deputy Director of the ORC advised Bertrand in writing of a Notice of Proposed Order to Refuse to issue him a License, (a “NOP”) and he was rendered ineligible to be an Association Official.

4. On September 24, 2013, counsel on behalf of Bertrand filed an appeal of the NOP.

5 Bertrand’s appeal against this ruling was heard on December 5 and 6, 2013 and February 19 and 20, 2014.

Trial De Novo

6. This hearing before a panel of the ORC must be a “trial de novo” as set out in Polifroni v. Ontario Racing Commission #2, 2013 ONSC 4662, July 19, 2013, O. Div. Ct.). The appeal is pursuant to the Racing Commission Act (the “Act”) of 2000.

Issue

7 Does the conduct and Standard of Proof of Bertrand warrant a refusal of an ORC licence as an Association Official?

Burden of Proof

8. The burden of proof is on the Administration of the ORC to prove that the decision to refuse to license Bertrand as an Association Official is appropriate and there is only one civil standard of proof at common law and that is proof on a balance of probabilities (F.H. v. McDougall, 2 October 2008 SCC (pp. 12-13 para. 40).

9. There were three areas of concern relating to Bertrand as a racing official (see list as set out in TB Rules and in Section 16.03). One of his responsibilities as the C of S was the weighing of the jockeys and their equipment before and after the race and to report to the Stewards and the track announcer where there were any variables. The correct weight is considered one of the items that an informed bettor needed to know prior to a race taking place. There was some evidence that a rider weighed in with “cheater boots” (light weight boots). This was denied by the jockey involved stating that he rode with the boots he had on at the weigh in. There was no clear evidence that the use of such boots occurred at any recent time or that Bertrand failed to record the proper weights.

10. The next area of concern of the ORC was the irregularities in the handling of the breathalyzer equipment and the accuracy of the tests. Investigator Pam Bray submitted a report dated November 28, 2012 as follows:

“(I) Failure to report readings to the Stewards in excess of the allowable limits;

(ii) Failure to maintain accurate Thoroughbred Daily Test Records on twenty separate occasions;

(iii) Failure to maintain direct observation of participants who provided samples in excess of the allowable limits who were waiting to provide second samples;

(iv) Failure to obtain breath samples in the Clerk of the Scales’ office, as required;

(v) Failure to report initial sample readings and failure to advise the Stewards on the readings contrary to protocol.”

11. The testing equipment and the use thereof is detailed in Exhibit 1, Tab 9. The Operator Guide is set out in Exhibit 3, Tab 35. Each test report in Tab 9 states at the bottom of the page below the signature of Bertrand that a reading of .020 on the breathalyzer unit or higher must be reported to the Steward. If any person exceeded that allowable limit he/she must remain with the operator for fifteen minutes following which a second sample must be provided. The result of the second test must be recorded and reported.

12. Each test report in Exhibit 1, Tab 9 was signed by Bertrand. He testified that he often kept the breathalyer in his pocket for convenience in testing. This is likely the reason why not all of the tests took place in his office area. He stated he had not paid attention in training sessions or that as the C of S he was required to record readings of .005 or higher on the daily test reports. The last training session he attended was in 2011. The breathalyzer program on April 6, 2009 is at Exhibit 1, Tab 1. It sets out on page 11 that any level of .005 or higher shall be recorded on the report form and on page 13 as a result of a positive test the participant after fifteen minutes shall provide another sample. The second sample will be reported to the Stewards and if it is below .02 the participants may resume their duties. All results must be recorded on the breathalyzer report form.

13. There were fifteen test results in Exhibit 1, Tab 9 where five identified the jockey involved in the testing and the others did not. With each test sheet there was an accompanying log sheet that recorded test results and the time of each test. There were some instances where the log indicated that a test should have been recorded but this appears to not have been shown on the daily test report signed by Bertrand. There were four log readings which showed breathalyzer readings that were not recorded at all on the daily test report.

14. All the failures identified by Investigator Bray were not established but on the balance of probabilities there was sufficient evidence that there were failures by Bertrand contrary to protocol. He did not report some readings to the Stewards and did not consistently maintain direct observation of jockeys that had to be retested. There were occasions that he acknowledged that he had not done a second test in his office or within the fifteen minutes that the protocol required for a second testing.

15. In a letter (Exhibit 8) dated December 4, 2008, the ORC put Bertrand on notice that the one hour delay in providing a jockey reading of .024 was not the proper procedure and that he let the jockey in question (Patrick Husbands) leave his office to go to the “hot box” to continue reducing and forgot where he was with the result that forty-five minutes had elapsed before the second reading was taken.

Accepting Payments

16. The following amounts were put in evidence as being received by Bertrand from the jockeys named:

(a) $125 from Emma Wilson in 2010

(b) $1,500 from Patrick Husbands in 2010

(c) $2,000 from Patrick Husbands in 2011

(d) $2,000 from Patrick Husbands in 2012

(e) $500 from Eurico Da Silva in 2012

(f) $2,000 from Tyler Pizarro in 2012

17. There was also evidence that payments had been received from Mr. Husbands in 2009. Mr. Bertrand said that these payments were received at the end of the racing season which he accepted as end of season gifts akin to a Christmas present. Two of the donors stated this was a thank you for putting their names forward with trainers looking for mounts and one went as far as suggesting that Bertrand was like an agent although he did have an agent. Both Bertrand and Husbands referred to the payments as having been recommended by the accountant for Mr. Husbands. These were not charitable donations and in the view of the Panel were not the same category as group donations made by a number of jockeys to be divided among the members of the “gate crew”. There are approximately sixteen members of that crew and they have a different role than the C of S. The only similarity is the obligations to protect the riders with the crew having more physical involvement.

18. An observer of the horse racing industry would have a negative impression of such payments. There would be the inevitable view that the acceptance of such payments would be giving the donors the expectations of receiving favours in return, including the possibility of the bending of the rules involved in the weigh-ins and breathalyzer reports. This favouritism could include overlooking weight and breathalyzer violations and avoiding the protocol by allowing more time than permitted between the first and second breathalyzer reports.

19. Bertrand’s supervisor, Steven Koch, the Vice-President of Thoroughbred Racing testified that he had concerns about Bertrand accepting money and that “the optics are not good”. He stated that while there was a tradition to make gifts for the gate crew that was not the case for the C of S. Three Stewards (all former jockeys) specifically said that they would never accept money or make any payments to the C of S as it would be improper for any person in a position of trust and lead to an expectation of a benefit or favour from the C of S. Mr. Koch reviewed the WEG code of conduct that prohibited their employees from receiving any payment except under restricted circumstances. The form in their code was not signed by Bertrand to his knowledge and apparently he was never asked to execute same. Mr. Koch did express concern about integrity and the public view about the C of S position in Bertrand accepting payments from jockeys. Mr. Bertrand had not informed Mr. Koch of such payments until the spring of 2013 and then did not mention all the payments.

20. The WEG code of ethical business practices is at Exhibit 3, Tab 34 and at page 883 it states, “promotional material or a gift of a nominal value (not to exceed $150) may be accepted if made voluntarily and there is no reasonable likelihood it will influence your judgment or actions in performing duties for Woodbine Entertainment”. These are the guidelines for all employees and if anything is questionable, it should be reviewed with the President or an Executive Vice-President before proceeding. On page 884 there is a provision for a declaration to be done stating compliance with such code by all members of the Senior Management and all persons designated by their departmental Vice-President in December of each year. All other employees are required to complete a declaration at regular intervals as determined by their Departmental Head. Mr. Bertrand said he was unaware of such declaration.

21. There was no evidence that Bertrand solicited payments from jockeys or any other person involved in racing. There was also no evidence from any person that knew of the payments except those directly involved. The longevity of Bertrand’s working for WEG appears to have reduced the amount of supervision over his activities with the natural assumption of his supervisor that he was “doing his job”. Bertrand stated that he did not see anything wrong with the way he was operating the breathalyzer or that the receipt of gifts was improper conduct. He did not appear to be contrite or to indicate his attitude would change, although he would act differently on the instructions of his Supervisor, Steven Koch.

The Statute

Public Interest

22. The Ontario Racing Commission has a statutory mandate to govern, control and regulate horse racing in Ontario in any of all of its forms (Act, S.5). It has a broad array of powers set out in s.7 of the Act, and in exercising those powers and performing its duties it must act in the public interest and “in accordance with the principles of honesty, integrity and social responsibility.” (Act S.6).

23. As a regulated industry in Ontario, the provision of services in racing requires that licensees demonstrate the utmost honesty and integrity. There were witnesses on behalf of Bertrand that indicated he was a man of integrity in their view but those statements seemed to the Panel to relate more to his long term activities in his job as the C of S and not to the concern of the impropriety in the acceptance of payments from jockeys. The latter becomes an integrity question that was not evident until the allegations of the cheque acceptances became known through a published report of such payments.

24. Bertrand’s past conduct, which includes failing to follow policies and procedures in connection with the operation of the breathalyzer equipment and accepting monies from jockeys, provides reasonable grounds for the Director to conclude that he will not act in accordance with the law, or with integrity, honesty, or in the public interest, and will not carry on activities in compliance with the Act and the TB Rules. On the balance of probabilities, on the basis of all the evidence, in the Panel’s opinion, Bertrand has not demonstrated that he would act properly as the C of S.

Decision

25. The TB Rules do not specifically deal with the concerns in this matter although the intent expressed in TB Rules 15.11 and 16.03.01 suggests that the actions of Bertrand could be considered improper. This is not a case where the Panel can substitute a fine and/or suspension when the ORC has issued an NOP order. All licensees must be treated equally and fairly, no matter their age or the length of time they have been licensed (see Tremblay Case - Exhibit 5, Tab 1, paragraph 20).

26. The appeal from the NOP is denied. The Panel, as indicated above, does not consider Bertrand as a person that should have the authority given to the C of S.

27 This decision does not prohibit a future application by Bertrand to the ORC as a Racing Official. This comment is obiter. As a guide for the ORC, if he should so apply, in the Panel’s view he should not be a C of S. He should be restricted to another position that might be suitable for a person with his experience in dealing with horse people where he would be subject to the supervision and direction of a qualified Senior Manager (see Re Manneke (Exhibit 5, tab 7 at 10 ii) as an example). The same decision points out that an ORC licence is a privilege, not a right (Paragraph 26).

DATED this 18^th^ day of March 2014.

Elmer Buchanan

Chair

John W. Macdonald, Q.C.

Member

Sandra Meyrick

Sandra Meyrick

Member